Taking the Heat for a Tweet

Twitter processes more than 500 million tweets each day, many by companies and professionals who use the social networking site as a powerful marketing tool for their goods and services. Yet in an age in which an errant tweet can destroy a reputation in 140 characters or less (thank you, ex-Congressman Weiner), how many of these same entities are taking adequate steps to police their online selves? For many companies, the answer usually lies in a social media policy that sets out the dos and don’ts of interaction in the digital age, a document that’s carefully drafted or vetted by trusted legal counsel. Yet in a classic case of the shoemaker’s children going barefoot, a growing number of embarrassing social media miscues are coming from lawyers themselves.

The latest came courtesy of Reed Smith partner Steven Regan, a real estate partner at the firm’s Pittsburgh home office. On Oct. 15, he took to Twitter to comment on the U.S. Supreme Court’s decision to hear a case challenging the Environmental Protection Agency’s regulations regarding greenhouse gas emissions. Perhaps thinking he was directing his message to an official Supreme Court Twitter account, Regan tweeted “@SCOTUSblog – Don’t screw up like [the Affordable Care Act]. No such thing as greenhouse gas. Carbon is necessary for life.” SCOTUSblog, which in fact is an online media outlet known for its commentary and analysis of the Supreme Court’s decisions, responded with a brief but sarcastic tweet: “Intelligent life?” At that point, Regan fired back with an angry “Go f@ck yourself and die.” SCOTUSblog replied with more snark, tweeting “Being an expert climatologist/real-estate attorney is very stressful. Breathe,” and sharing Regan’s outburst with the blog’s 143,200 Twitter followers. From there, Regan’s Twitter meltdown went viral, as it was reported by national legal media like the ABA Journal, Law360, Above The Law, and others. Regan deleted his Twitter account, @SteveRegan4, and refused to comment on the profane exchange, but the damage was already done. His 1,800-lawyer firm issued a statement that “the posting of offensive commentary or language on social media is inappropriate and inconsistent with Reed Smith’s social media policy. We are addressing this matter internally.”

Self-inflicted reputational damage is hardly an isolated occurence nowadays, as embarrassing tweets by professional athletes, movie and television stars, and even CEOs like designer Kenneth Cole (who recently made light of the Syrian conflict by tweeting “‘Boots on the ground’ or not, let’s not forget about sandals, pumps and loafers. #Footwear”) have become routine. But one would think that members of a field as staid and governed by both ethical rules and civility guidelines as the legal profession would be more careful in the freewheeling Wild West that is social media, right? Not quite.

Despite the advice they give their clients and the social media policies they draft for others, lawyers are seemingly as prone to online miscues as anyone else. In February 2011, Indiana Deputy Attorney General Jeffrey Cox tweeted that live ammunition should be used on pro-labor protesters in Madison, Wisc., and promptly found himself without a job. In November 2012, Sara Peterson Herr, a research attorney for the Kansas Court of Appeals, was fired after posting offensive tweets about the then-pending disciplinary hearing of former Kansas Attorney General Phill Kline; she now faces disciplinary action of her own for charges that include “conduct prejudicial to the administration of justice.”

David Cosgrove, former chief legal counsel to Missouri Governor Bob Holden, is facing legal action for allegedly posting nude photos of an ex-girlfriend (and Virginia prosecutor) to Twitter. It’s even become an international issue; earlier this year, the former president of the Law Society of Scotland came under fire for sending racially charged tweets that included ethnic slurs against Pakistanis and Poles, and a Toronto criminal lawyer was engulfed in controversy after offensive tweets supportive of the Boston Marathon bombing suspect were sent from his Twitter account.

Law firms closer to home have dealt with online scandals, too. After a May 2013 tweet by Akin Gump lobbyist James Meggesto that accused a Native American tribal leader of lying to Congress, Rep. Raul Grijalva (D-Ariz.) demanded a public apology. (The firm released a statement that “Mr. Meggesto’s personal tweets are not necessarily reflective of the views of Akin Gump on this or any matter.”) Two years earlier, Paul Mirengoff, then an Akin Gump partner and blogger, wrote about the memorial service for the Tucson, Ariz., shooting victims, calling the opening prayer by a Yaqui Indian tribal leader “ugly.” Mirengoff later posted an apology, and Akin Gump’s managing partner issued a statement distancing the firm from the blog and the “insensitive” remarks. The firm also stated in the wake of the comments that it would review its social media policy. And, although not technically social media, few on the Dallas legal scene have forgotten the profanity-laced string of emails by former Cozen O’Connor partner Martin J. Sweeney in March 2012. During a commercial litigation case involving pet resorts, Sweeney sent a string of abusive emails to opposing counsel at Fort Worth’s Kelly Hart & Hallman, replete with language that one would normally find in a Quentin Tarantino movie, like “F*** with me and you will have a huge ***hole.” When the emails went viral after the firm filed a motion for sanctions, Cozen O’Connor parted ways with the litigator, issuing a statement that “Effective May 16, 2012, Mr. Sweeney is no longer an attorney with Cozen O’Connor.”

What’s behind such Twitter meltdowns? Peter Vogel, a partner at Dallas’ Gardere Wynne Sewell LLP and a leading technology lawyer in Texas, says, “People say things in emails, tweets, texts, and on social media sites that they would never say face to face or put in writing in a letter.” Vogel adds that although “people have always had ways of venting, such as posting signs in their front yard to protest political candidates,” the “ease of use, perceived anonymity, and immediacy of communication tools like Twitter have added a whole new dimension.”

Naturally, there can be consequences for such unfiltered discourse. According to the ABA’s 2012 Legal Technology Survey, 77 percent of the responding lawyers indicated that they were members of at least one social networking site. For most, the main reason is marketing one’s practice. A 2012 survey by Inside Counsel magazine revealed that 97.9 percent of in-house counsel use LinkedIn as a directory source for lawyer profiles, and a 2011 study by BTI Consulting Group on “How Clients Hire” indicated that 70 percent of in-house counsel regularly use social media profiles to identify, evaluate, or verify the credentials of outside counsel.

In a competitive legal market, it would make sense for law firms to be more proactive when it comes to policing their digital selves. Long before Mr. Regan’s Twitter outburst, Reed Smith sent its senior lawyers to “Tweet School” to learn of the medium’s perils, and one of the firm’s partners even published an article in Corporate Counsel on how law firms can limit social media risks.

Lisa Salazar, the senior interactive marketing manager at Norton Rose Fulbright, says that having social media policies is not enough. For her firm, having central management of all social media efforts is the key, in order to “provide general oversight to the firm’s digital space” and “help the firm manage a market space that is always ‘on.’” Salazar says that social media can’t be left up to just the lawyers: “The digital space is an endless universe. To put a firm’s reputation in the hands of someone who is not fully aware of all the ramifications—be they compliance issues, PR issues, or branding issues surrounding social media—is ill-advised.” Salazar and her team provide in-house educational sessions and one-on-one training for the firm’s lawyers to avoid social media missteps that could embarrass the firm or its clients.

But with access to a potentially worldwide audience literally in the palm of a lawyer’s hand thanks to smartphones, are all the social media policies and training enough? Vogel, for one, has concerns. “Unfortunately,” he says, “I believe that it will take headlines, malpractice claims, loss of attorney-client privilege, and other bad court rulings to properly get the attention of the legal community about how they should use social media.”